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2019 (10) TMI 1572 - HC - Indian LawsSeeking payment of the admitted sum due towards the work executed on the Project which was to the knowledge of the Defendant - work has been executed by the Plaintiff, as part of the Project, which has been acknowledged by NHIDC, and since ITNL/SSTL are under liquidation, the Plaintiff ought to be compensated directly by NHIDC - HELD THAT:- The remedy sought by the Plaintiff in this suit, though quite creative, would not be maintainable inasmuch as the agreement between the Plaintiff and ITNL is subsisting and has not been terminated. The Plaintiff has executed the works for ITNL, even though NHIDC may have indirectly benefited from the same. The contracts may be back-to-back in nature, but the Plaintiff cannot by-pass its existing contractual relationship with ITNL. As held by the Hon'ble Supreme Court in Food Corporation of India & Ors. [2007 (11) TMI 707 - SUPREME COURT] and MAHANAGAR TELEPHONE NIGAM LTD VERSUS TATA COMMUNICATIONS LTD [2019 (2) TMI 2091 - SUPREME COURT], Section 70 falls in that Chapter of the Indian Contract Act, 1872 which deals with relationships which resemble contracts. In that sense, the provision belongs to the category of quasi contracts and restitution. Such a remedy is unusual and cannot be permitted to be invoked in the present case as the conditions for such a claim to be made, as laid down by the Hon'ble Supreme Court in State of West Bengal v. B.K. Mondal & Sons, [1961 (12) TMI 82 - SUPREME COURT], have not been satisfied. It is not disputed that the above order continues to operate and apply even qua ITNL. The primary dispute and claim for recovery being against ITNL/SSTL, in view of the order dated 15th October, 2018 of the NCLAT, the present suit would not be maintainable. The claims of the Plaintiff would lie only against the parties with whom it has privity i.e., ITNL/SSTL. No direct claims would be maintainable against NHIDC. In view of the above, the Defendant's application under Order VII Rule 11 CPC is liable to be allowed.
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